Bill would nuke Visa cards, Adwords, DNS records for pirates

If rightsholders get their way, overseas pirate websites could soon be …

Watch out Google, Visa, and the domain name system—Congress has all of you in its sights.

Now that the midterm elections in the US are over, the Senate this week will again take up S. 3804, the Combating Online Infringement and Counterfeits Act (COICA). The bill allows the US Attorney General to target "Internet sites dedicated to infringing activities" both inside and outside the country, obtaining a court-ordered injunction against them if they have "no demonstrable, commercially significant purpose or use other than" sharing copyrighted files without authorization.

Such schemes usually run up against the distributed anarchy of the Internet, but COICA will try to hammer sites located in other countries by leaning on key supporting players that are based in the US. Should a judge agree that a website is "dedicated to infringing activities," that site will face a host of tough penalties that go beyond mere site censorship:

A service provider, as that term is defined in section 512(k)(1) of title 17, United States Code, or other operator of a domain name system server shall take reasonable steps that will prevent a domain name from resolving to that domain name's Internet protocol address;

A financial transaction provider, as that term is defined in section 5362(4) of title 31, United States Code, shall take reasonable measures, as expeditiously as practical, to prevent (I) its service from processing transactions for customers located within the United States based on purchases associated with the domain name; and (II) its trademarks from being authorized for use on Internet sites associated with such domain name; and

A service that serves contextual or display advertisements to Internet sites shall take reasonable measures, as expeditiously as practical, to prevent its network from serving advertisements to an Internet site accessed through such domain name.

Not only will the site have to be blocked by US-based DNS lookup services, but credit card processors will not be able to handle orders for US addresses. This provision was apparently modeled on the Russian AllofMP3 site, which was crippled after rightsholders cut off its access to major credit card processors. The third step looks mainly targeted at Google Adwords, which routinely appear on sites of a less-than-savory nature (and which have irritated rightsholders immensely).

Together, the three penalties won't take down foreign sites or even prevent them from being accessed by the tech savvy, but it could cut off Pirate Bay access to most ordinary Americans. More importantly (from the rightsholders' point of view, at least), the US government will do all this free of charge.

Today, a host of rightsholder groups including the RIAA, MPAA, and Screen Actors Guild, signed a letter claiming that they are all about the "free and open Internet." But rampant illegal activity is not what "freedom" is about.

"The legislation is carefully crafted to combat what Vice President Biden—a former Judiciary Committee Chairman—recognized as 'theft—flat, unadulterated theft'," said the letter.

Some groups have already complained that COICA takes the US down the dark road to censorship and that it would empower countries like China to point at our laws and say they are simply taking similar steps. The letter rejects this view. "In fact, however, by establishing an open and transparent judicial process constrained by due process, enactment of your legislation would set a positive precedent regarding the US commitment to the inviolability of the rule of law in the Internet age. It would enable our representatives to push back more forcefully against those countries that seek to interfere with the freedom of Internet users on a more arbitrary or intrusive basis."

All fair points, but we're still—to put it mildly—uneasy about the proposal. Why? Well, look at what rightsholders have done in the last few decades.

A sorry history

They tried to shut down the VCR, going all the way to the Supreme Court in their quest to keep this "Boston Strangler" out of American living rooms. They tried to shut down the MP3 player, going after the early Diamond Rio models. "Diamond's product Rio was destined to undermine the creation of a legitimate digital distribution marketplace," said RIAA head Hilary Rosen in 1998, who wanted the device crippled with DRM. As for the "theft" Joe Biden talked about, TV execs like Jamie Kellner railed agains the "theft" of ad-skipping, and the industry sued to shut down Cablevision's own remote DVR.

The RIAA tried to cripple HD radio, demanding "broadcast flag" tech that would ban certain devices, such as those that might automatically grab only songs by a particular artist. "We're in favor of HD radio," said the RIAA's Mitch Bainwol in a 2004 interview. "It offers great benefits for consumers and everyone involved, but we're not blind to several concerns. Someone could cherry-pick songs off a broadcast and fill up a personal library and then post it on Kazaa… We're concerned for ourselves and the artists. If you don't have protection, it undermines the future investment in music."

Rightsholders went after HDTV, demanding a similar broadcast flag and a mandate that TV makers would have to respect such a flag. They won, only to have it tossed by the courts.

Rightsholders have gone after YouTube, seeking a billion dollars even though the site does take down infringing content when notified about it. A judge recently ruled in favor of YouTube.

The examples could be multiplied, but the point is clear: the big content companies have all sorts of legitimate complaints to make about how their intellectual property is being treated, but they also have a terrifying history of arguing that most hugely useful innovations should be banned or limited as well. It's not hard to see how a regime like the one outlined in COICA could, with a bit of pressure, be brought to bear on all sorts of useful Internet services, and how small overseas sites might have difficulty making their case in a US court.

It's still not clear that COICA has any chance of coming to a vote before this Congress disbands, but it is clear that this is how the music and movie industries would like to proceed. The Senate Judiciary Committee will look at the bill on Thursday.